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Body, self, and the property paradigm.

The remarkable developments in biomedical research and technology of the past quarter century have made the human body not simply a subject of study and observation, but an object of manipulation in revolutionary ways. We seek to create new life through reproductive technologies, to sustain life through the drama of an organ or tissue transplant, to preserve life by means of research on retrieved tissues and cells. Such manipulation has generated provocative paradigms for rethinking and seeing the human body, among which is the image of the body as property. In light of the many potential lifesaving uses of the body in medicine, we cannot avoid questions about whether the human body is a form of private property and whether persons own their bodies.

In seeking to make sense of the body, moreover, we may also seek to make cents of it. The property paradigm is frequently embedded, for example, in proposals advocating a commercial market in body organs and tissues. This kind of policy recommendation does not follow necessarily, since property can be given or sold (as well as not transferred at all). Still, as an OTA report suggests, "calling the body property may act to make the use of market incentives with respect to the body and its parts more acceptable."[1] Thus, our images of the body can influence policies regarding the method of procuring valued body tissues, and correlatively, adopting a particular policy can reflect a certain understanding of the moral status of the body.

In light of this paradigm-and-policy dialetic, two distinct, though related, questions emerge. First, is seeing the human body through the conceptual lens of 'property' appropriate? Second, what ethical and practical implications emerge from this paradigm? In many instances, discussions of the disposition of organs, gametes, or cells have sought to address the second question of practices without having given sufficient attention to the preliminary question of the appropriateness of the paradigm. In the absence of this attention, we can miss the significance of our understanding of the body for our sense of self-identity.

We cannot then just assume the validity of the property paradigm of the body and proceed to practical ethics. I want to explore the relations between the body, the property paradigm, and a sense of self, first identifying three differnet moral meanings expressed by the paradigm in the discourse of biomedical ethics and then assessing the paradigm's validity by proposing two different accounts, one religious, the other secular, for thinking about claims of ownership of the body. I will conclude by considering the practical implications these two accounts may hold for the issue of organ procurement.

Territorial Integrity

An everyday occurrence (it seems) in the state of nature that passes for our home life: a wailing child, having lost out in the kid wars, comes to me lamenting, "He bit me." "Where did he bite you?" "On my arm (hair, cheek, neck, leg, foot, etc.) [sob, sob]." Even as, and perhaps especially as, children we identify our sense of self with bodily experience ("me"), yet we also experience the otherness of the body: "my arm" is related to but somehow different from "me." This domestic example of the identify-yet-otherness of the body raises, at one level, the "mind-body" problem in embryonic form, but at another level, it illustrates a profound sense in which we may perceive the body as a form of property. We do not think it inappropriate to use possessive pronouns in referring to the body: "My body aches"; "You need to take better care of your body." We thus experience the body both as what we are and as what we have or possess.

The body is nevertheless a distinctive kind of possession. To designate the body as property is to make a spatial or territorial claim that issues in a demand on others to respect its integrity. This does not mean the boundaries of the body are always inviolable, but it does entail that one's body has intrinsic value irrespective of its potential instrumental worth to others. This conception of territorial integrity is embedded in the substantial attention biomedical ethics has devoted to the moral legitimacy of "invasive" medical procedures--cesarean sections, surgery, or life-prolonging technologies, for example--where the question is whether infringement of bodily integrity will achieve some greater good. A clear criterion of legitimacy, of course, is patient consent or authorization (in company with other criteria, such as whether the proposed intervention will achieve the contemplated good, whether this good might be achieved through some other, non-invasive method, and the proportion of risks and benefits). Alternatively, nonconsensual invasion are extremely difficult to justify, except perhaps in emergency situations. The idea of medical procedures "invading" the property of the body itself reinforces the pervasive military metaphor of medical practice,[2] under which the body becomes a kind of battle-ground in the war against disease and death.

In religious language, the theme of territorial integrity may be conveyed in images of the body as "sacred space," or what Mircea Eliade refers to as a hierophany, a medium for the manifestation of the sacred in human experience.[3] Indeed, the body is for us in a very fundamental sense an axis mundi, the center of one's world and the space around which that world rotates. The body thus assumes the character of a "sanctuary" or a "temple," set off or apart from other things we hold as possessions, and toward which the appropriate disposition may be more reverence and awe than respect.

This sacral dimension of the body also, not surprisingly, entails limits on access. In the context of medicine, for example, entry into the bodily sanctuary without both special authorization and a profound purpose (saving life, restoring quality of life) constitutes intrusion and the violations of trespass and pollution. Moreover, those who seek such authorization must have undertaken appropriate preparatory conduct (education, cleansing and washing, change of clothing--the common rituals of medical practice). For other persons and purposes, the sacred space is not accessible.

The claim of respect of reverence for the body does not cease automatically upon death but is embedded in common rituals regarding the dead. As William F. May has indicated, the quasi-property rights vested by law in the family of the deceased to seek a suitable final disposition of the body implies a principle of extraterritoriality. The person whose life it was, whom we knew only in and through the body, is now gone, and yet within many cultural traditions, it would be deemed unacceptable to leave his or her body exposed to the elements, a rotting carcass in the wilds.[4] The principle of extraterritoriality is at issue, as May points out, in Sophocles' Antigone in the dispute between Antigone and Creon over the burial of Polynices: "No other party could normally interpose claims upon the corpse that would interfere with the family's right and obligation to provide for a fitting disposition of the remains."[5] Thus, the body's moral demand for a kind of respect continues to exert itself after death, as we contemplate the alternatives of cremation, burial, retrieval of organs, or some combination of these.

We can ask whether this profoundly personal experience of possession of body itself constitutes ownership of property. At first glance, possession appears to be neither a necessary nor sufficient condition of ownership. I may own a house, but other persons may be in actual possession of the house as renters. Similarly, possession cannot be a sufficient criterion of ownership; I have in my possession very valuable books on biomedical ethics, but they can hardly be said to be my property, as I have them on loan from the library. While possession may, in the familiar phrase, constitute nine points of the law, the central issue is whether a right to ownership exists.

Yet as analogs of our relationship to our bodies, particularly the identification of self and body noted above, these examples of possession are quite inadequate. I cannot remove myself from my body as I can from a rented house, nor can other persons lay claim to my body as they might to be borrowed books. Even as I experience the otherness or "my" of the body, it is characteristically not wholly other to me. It is precisely this latter differentiation, however, that the technologies of transplantation or reproduction can accomplish: organs or tissues may be removed, and I can offer them to others. This technological transformation suggests a second principle of the property paradigm: the principle of alienation.

Acquisition and Alienation

Contemporary medicine has transformed the human body into a source of instrumental value, a resource of value to others: patients, physicians, researchers. Organs, tissues, gametic materials, and cells provide real, practical, even life-saving benefits, and society acknowledges this by sanctioning various modes of acqusition, including gifts and donations (organ, marrow, blood), sales (hair, sperm, blood), or abandonment (tissue excised during surgery).

Such practices seem to presuppose a basic feature of property, the capacity and power of alienation or transfer, or what the British legal scholar A.M. Honore refers to as "the right to the capital" in ownership of things.[6] We (or in some instances others acting on our behalf) treat the body as a form of property when we exercise this right to obtain things of value through the sanctioned methods of transfer and acquisition, while we also retain a right of nonparticipation that excludes other from laying claim to my body as they might to a house or books. The central ethical question that arises in this context is how the desired instrumental benefits of the body can be obtained without violating the right of exclusion, which is grounded in the body's intrinsic value and the identification of the self with the body. Our society has, for example, generally relied for the most part on donations, sales, or abandonment for access to the valued body because routine taking (through presumed consent) or expropriation (taking without consent) is deemed to cross moral lines.

The practices of acquisition and the embedded principle of alienation nonetheless pose some conceptual and moral perplexities. The image of the body as property relies on a sense that parts of the body, such as organs, gametes, or cellular tissues, can be transferred to, acquired by, and manipulated by others. Indeed, excepting cadavers used for educating medical students, alienation often requires some kind of severing or disruption of the organic unity and integrity of the body, a dismembering or disorgan-ization of the body.[7] More often than not, the body as alienable property will no longer be a whole, organically unified body (let alone a whole person), but will instead be reduced to a "source of spare parts."[8] Some of these spares (corneas, marrow, sperm) when collected from different bodies are stored in "banks," language that reinforces both the instrumental value of the body and the commercial dimension of the property paradigm.

This process does not hold in every situation, of course. We can readily transfer regenerative bodily tissues, such as hair, blood, sperm, without undergoing disemberment. Indeed, the loss of hair, the spilling of blood, or the emission of sperm seems a common enough experience in life that it does not threaten the sense of identification of self with body. This may account in part for why we allow for both sales and donations of such material. The permanent loss of such tissues, as with baldness or impotence, does, however, characteristically pose threats to self-identity or, as with permanent loss of blood, to life itself.

It is, in this context, important to ask about the impact of the alienation of body parts on the understanding of the body as a unitary whole. For example, while the "part-whole" imagery expresses a distinction of long-standing philosophical importance, in the context of modern medical technology the language of "parts" can betray a mechanistic understanding of the body (and of medicine) that seems important to resist. Such reductionism is countered by the prevailing (except perhaps among some libertarians) assumption that it is unacceptable for a person to alienate his or her entire body prior to death, even if certain valued body tissues can be permissibly transferred. This suggests a possible distinction between parts of the body as property and the organically unified, embodied self as something else. Conversely, a claim that the whole body is not a form of property does not necessarily imply that particular parts are not property. However, to infer from practices of alienation of valued body organs and tissues that the body is itself alienable may appear to reduce the human body merely to a sum of its spare parts.

This kind of conceptual compartmentalization seems supported by experience. May, for example, has observed that we generally do not respond with the same emotional intensity to dismembered body parts as we do to an entire corpse. The corpse evokes expressions of revulsion, aversion, and horror; the detached organ, having lost its bodily place and purpose, is an embarrassment and an "object of ridicule."[9] Bodily parts and tissues seem to have undergone some kind of transformation in status, conceptually and affectively, when they are outside rather than inside the body. The process of re-membering that is organ transplantation restores that harmony and purpose as part of the restoration of function and life.

This distinction between the unified, integrated body and the dis-organ-ized, alienable body it vital in relation to a moral worry that shadows the property paradigm: the historical legacy of chattel relationships with persons, especially women and children, and slavery. Critiques of the property paradigm may therefore invoke a different sense of alienability--that is, alienation not as the capacity for transfer, but rather as a condition of estrangement and dehumanization. The contexts of particular moral suspicion are practices that may risk transforming the body into a kind of commercialized property, whether it be "selling" organs in a marketplace, or "renting" a uterus in a brokered surrogacy arrangement. Objections to these practices characteristically invoke the language of "exploitation" or draw analogies to slavery or prostitution.

As Russell Scott suggests, the property paradigm of the body in biomedicine is motivated by an entirely different set of concerns from those of societally sanctioned exploitive servitude: "Slavery is inspired by man's greed and cruelty, while transplantation and other therapies that employ human tissues are designed for man's benefit."[10] We can, however, question whether such motives and designs are sufficient safeguards against abuse without some procedural protections provided by institutional review or legal statutes, including those contained in the traditions of property law. Moreover, it is possible to ask whose "benefit" is contemplated. Thomas Murray, for example, has cautioned that the commercialization of biomedical research may erode public trust in the scientific and research communities, owing to a perception that scientists "are greedy" or "are taking advantage of people."[11]

This is only to contend that the principle of alienation embedded in the property paradigm is not morally unproblematic. Two distinctions seem important to keep in mind: that alienability as transfer is not limited to commercial exchanges, but also encompasses gifts and donations, and that it is possible to affirm both the integrity of the whole body and the alienability of the dismembered body.

Exclusion and Empowerment

The concern about moral and legal protections from abuse and exploitation suggests a third fundamental dimension to the property paradigm in biomedical ethics. If the body is in certain respects a form of property, it is an intelligible question to ask whose property it is. Traditions of theological ethics may well answer that question differently from secular traditions, where, for instance, some have recently looked to the law to adjudicate different interests in removed tissues and cells.[12] In this context of competing claims, the property paradigm seeks to establish the locus of decisionmaking authority regarding disposition of the body.

If, for example, one's body is in a very fundamental respect the property of the person, rather than, say, that of the state, or of the medical community, choices about what may be done by, with, or to the body reside with the person to control and direct. The paradigm not only places boundaries around the body, to keep others from intruding on the body or invading one's property, but also excludes others from choices about the body, or from intervening in decisions of an intimate nature. The language of property thus functions to give persons control, and it is a part of the general concept of property that this be a right to exclusive control. Yet the property paradigm conveys something more than criterion for the procedural question, Who decides? In addition to its exclusionary nature, the paradigm may also symbolically support inclusion in the affairs of the larger society as an equal and participating member. Historically, for many societies the criterion of citizenship has been ownership of land. Such personal property assumed a very significant public role in that it demarcated the boundaries of citizenship and the moral community.[13]

The contemporary application of the property paradigm to the body may then be construed as a claim about empowerment, a particularly relevant aspect as moral issues in medical care increasingly assume dimensions of power in political and legal forums. It affirms both control over access to the body by others and the priority of the property owner's voice with respect to matters regarding one's body when disputes arise that require legal adjudication, whether it be forced cesarean sections or unwanted life-prolonging medical treatment. When the body is invaded nonconsensually for purposes of treatment or obtaining organs and tissues, the injustice is not only to the body, but also to the person who has wrongfully been denied a voice in the matter. Conversely, respecting control over one's body (and, implicity, the close identity of body-and-self) in such instances acknowledges a person's full and equal standing in the moral and political community.

The moral meanings of the property paradigm in biomedical ethics discourse can be expressed in these three principles of territorial integrity, alienation, and empowerment. Though integral connections among these principles exist, they are nonetheless not identical. The body commands a form of respect or reverence idependent of the instrumental uses to which it may be put. The use of property language to designate the locus of decisionmaking authority also needs to be distinguished from its use to designate certain bodily material as alienable.

It is, to be sure, one thing to describe the moral features of the property paradigm and another to contend that it is an appropriate paradigm for understanding the body and our relationships of otherness and identity with it. We need, in short, to consider the theoretical justification of the paradigm. Following the lead of S.I. Benn's contention that "things constitute property only inasmuch as they can be assigned to owners,"[14] I want to address this question of theoretical justification by examining religious and secular conceptions of ownership of the body.

Stewardship over the Body

It is instructive to consider briefly an account of ownership of the body conveyed in the formative religious traditions of our culture, in part because such views illustrate how prescribed or proscribed actions regarding the body are conditioned by the content of ownership, and in part because theologies of the body are frequently deemed inimical to a property paradigm. In fact, while religious discourse does manifest a variety of ways of seeing the body, property analogies are certainly a common theme.

In one of the earliest of Christian writings, for example, St. Paul counters the classical Hellenistic view of the body as a "prison" or "tomb" of the soul with a characterization of the body as "the temple" of God: "Your body, you know, is the temple of the Holy Spirit, who is in you since you received him from God. You are not your own property; you have been bought and paid for. That is why you should use your body for the glory of God" (1 Cor. 6:19, 20). The Pauline objection to the prison imagery concerned not only a theological perspective about human beings as fundamentally embodied selves, but also concerned ethical conduct, for the prison imagery pushed in two different directions to express the indifference of soul to body. It evoked an ascetic self-mortification as a means of denying bodily cravings, and also a moral libertinism and self-indulgence, especially in sexual activity and eating. The temple imagery sought to establish a middle path between these alternatives by calling forth a fundamental disposition of reverential awe toward the "sacred space" of the body, and a sense of both restrictions and responsibilities regarding what may be done with, by, or to that temple by oneself or others.

The body can clearly be theologically construed as property, but the central concern on this legacy is the acknowledgement that "you are not your own property," and that it is God, as owner, who establishes the restrictions and reponsibilities embedded in the paradigm. This does not, however, deprive human beings either of agency or moral accountability; indeed the divine-human relationship may be expressed in the concept of proprietary entitlement, in which persons are portrayed as stewards or trustees over God's property. The notion of proprietary entitlement relies on an assumption about the claims of ownership applicable to all owners, namely, that owners have ultimate authority to do with their property what they wish, which is joined with a particular belief about God's authority and role as creator of the world.[15] In turn, human beings have received and been entrusted with a responsibility of care over all creation: in the language of the psalmist, "What is man that you [God] should spare a thought for him, the son of man that you should care for him? Yet you ...made him lord over the work of your hands, set all things under his feet" (Ps.8:5-6). Such trusteeship or stewardship entails both an authority or entitlement for use and accountability for misuse, which we experience through our answering to others--conscience, community, God--as we offer reasons to justify our choices and actions.

The stewardship tradition of property, including the theme of restrictions and responsibilities, is embedded in the writings of John Locke, who in developing a line of reasoning that traces back to Socrates, grounds both the prohibition of suicide (restriction) and an obligation of mutual aid (positive responsibility) in an understanding of the self as God's property. "For Men ... are his Property, whose Workmanship they are, made to last during his, not one another's Pleasure....Every one as he is bound to preserve himself, and not to quit his station wilfully; so by the like reason ... ought he, as much as he can, to preserve the rest of Mankind."[16] Locke's language of "workmanship" here is particularly significant in that it sets up an analogy to support his subsequent theory of how human beings come to have property claims, namely, through the investment of their labor. God's "work" in creating human beings grounds divine proprietary entitlement over humanity, and following this pattern, a person's stewardship over God's property in the natural world is likewise a consequence of her or his own labor.

The theme of restrictions and responsibilities applies as well to the body. If human beings are stewards over the body, and entrusted with responsibilities for its care, how the body is used becomes a central concern; moral authority regarding the body is intrinsically connected with moral accountability for actions. The prohibition of inflicting harm on something that is ultimately not one's own, but is instead seen as sacred space, as expressed in the restriction on suicide, might well be expanded to include constraints on mutilation, disfigurement, and dismemberment of the body, at least when such actions do not work for the benefit of the whole person. All of these limits would seem to bear on the morality of something like organ procurement. At the same time, since (to borrow Locke's rather appropriate language) the steward has a positive responsibility to "tend to the Preservation of the Life, Liberty, Health, Limb, or Goods of another," participation in the practice of organ transplantation might be deemed perfectly compatible with the responsibility of mutual aid for the common good. The pattern of divine-human relationships might again provide the instructive analogy: what is ultimately received by the steward as a gift may also be given to others to their benefit. Whether the steward is thereby limited to gift-giving is, as we shall see, a complex problem.

A theology of stewardship over the body is obviously not the only understanding of the human body that has emerged in theological reflection or that has been expressed in religious practice. Even where such a theology prevails, varying degrees of restriction may lead to varying degrees of ascetic practice. Similarly, the sense of responsibility for the common good can be uncoupled from accountability and promote instead paternalistic practices of oppression and exploitation towards vulnerable persons in a society. The religious reality does not necessarily conform to the theological ideal.

The ideal of stewardship, I nonetheless wish to contend, does appear compatible in significant respects with the three principles of the property paradigm formulated above. The substance of the principle of territorial integrity is conveyed in the image of the body as sacred temple or sanctuary, while the stewardly responsibility of mutual aid provides a warrant for alienability of the body under conditions of benefit to the common welfare. The relevance of the empowerment principle may be more contested, given the dominion of deity over the disposition of property. However, the tradition of stewardship entrusts decisionmaking authority to human beings through the theme of proprietary entitlement. The steward is accountable for his or her actions, and the embedded restrictions and responsibilities impose moral standards for personal choices, yet that very accountability presupposes moral agency and authority.

The idea of bodily property, then, is not necessarily areligious; stewardship can provide a theological rationale for at least a modified version of the property paradigm of the body in biomedical ethics. It is modified in that this tradition would not seem able to support the view that the human body is simply private property. The point is not that the community has claims of bodily eminent domain or is entitled to expropriation of the body, but rather that the individual has responsibilities of mutual aid and benefit toward the community, the rejection of which is a form of ingratitude and a denial of dependency. The stewardship approach also risks the implication that the person as well as the body is property. Yet the property paradigm in biomedical ethics seems to demand just these two presuppositions, that the body can be construed as private property and that persons are not property. The cogency of these claims requires us to consider an account of property and ownership not dependent on religious world-views or premises.

Self-Ownership of the Body

"Every Man has a Property in His own Person."[17] Locke's concept of property expresses a Janus-like quality, such that he not only represents a theological tradition of stewardship, but also is a foundational figure for what later evolves into a philosophical tradition of self-ownership. According to Richard Arneson, the principle of self-ownership inspired by Locke (and defended by the contemporary libertarian Robert Nozick) can be expressed as follows: "Owning himself, each person is free to do with his body whatever he chooses so long as he does not cause or threaten any harm to non-consenting others. No one is obligated to place herself at the service of others in the slightest degree."[18]

In short, on the self-ownership principle an individual is the sovereign authority with full property rights over his or her body. Those rights, on standard accounts of property, would characteristically encompass general claims held against everyone (in rem) to exclusive possession and exclusive use of one's body, and to modification or destruction of bodily property; a conditional right (that is, a right whose exercise requires or is conditioned upon the voluntary agreement of another person) to earn income from particular uses of the body (labor, exercise of skills) through entering into contracts or licensure agreements; and the liberties to alienate these property rights in the body to another by gift or sale, or by bequeathal or transmission upon death.

There may be good reasons, however, for modifying the conventional rights of ownership when they are applied to one's body. For example, full ownership of property includes a feature of executability--that is, an owner may be liable for loss of his or her property as payment for debt--which could present some very unhappy implications if the body is treated simply as property. Ordinarily, of course, we would not consider outstanding debts to be grounds for a third-party claim to invade a person's body and retrieve an organ for payment. That dis-organ-izing scenario is the background to Lori Andrew's contention that, while a person can treat his or her body parts as objects or property, "we must not let other people treat one's body parts as property." This stipulation "will prevent the harms associated with holding the body as security until funeral costs are paid" and likewise entails that "there will be no means for a tax man or a physician to put a lien against a person's body parts."[19] This proposed exemption from executability suggests that, even on the self-ownership principle, there may be limits to treating the body merely as property, or, to reiterate a claim made above, that if the body is construed as a possession, it is nevertheless a distinctive kind of possession, precisely because executability would violate the principle of territorial integrity.

This modification in no way diminishes the obvious contrast and tension between the stewardship and the self-ownership places moral stress on rights of places moral stress on rights of liberty, autonomy, and noninterference, uncoupled from any corresponding concern for a responsibility to assist others in need. In place of the restrictions and responsibilities embedded in the stewardship tradition, a justification for moral minimalism emerges. A person is free of restrictions toward oneself, including restrictions on self-inflicted harm such as suicide, and is also unencumbered with positive responsibilities for the common welfare. What responsibilities we do have for the good of others, above and beyond avoiding inflicting harm, are determined by our voluntary choices, rather than given or chosen for us as part of what is involved in living in a moral community. The principal form of restriction, however, is that of respecting the property rights of the sovereign self over the body.

One can no longer claim, moreover, that the person is an embodied self. The self-ownership principle is able to avoid the stewardship implication that the person is property by affirming that self-identity is distinguishable from bodily existence and experience. Self-identity instead resides in the legislative will, the autonomous decisionmaker, the rationally self-interested chooser--the "self" and its choices that the principle of autonomy obliges us to respect. Indeed, on some accounts of self-ownership in biomedical ethics, the moral self is disembodied and our relations with others involve "mind meeting mind in order to create a fabric of obligations."[20]

This loss of the embodied self, that is, a sense that the body is incidental rather than intrinsic to self-identity and to understanding who we are, would seem to hold significant implications for the principle of alienation of the property paradigm. A distinction between person and body appears to place the living and organically unified body on a moral par with the dis-organ-ized body, yet our existential identity with our bodies is ultimately so fundamental that we could not alienate the whole body without doing the same to the person. Indeed, such an action would contradict rather than express the liberty and sovereignty of the self. Such a limitation on the principle of self-ownership runs parallel to the claim of John Stuart Mill about freedom: "The principle of freedom cannot require that he should be free not to be free. It is not freedom to be allowed to alienate his freedom."[21]

Notwithstanding some fundamental differences, both a theology of stewardship and the self-ownership principle would seem to converge on the permissibility of alienating bodily organs and tissues. Indeed, both approaches might appear to require modifications of current policies regarding organ procurement. However, they are likely to differ over the substantive nature of these modifications. The paradigm-policy dialectic noted at the outset requires a concluding comparative examination of these differences.

Making Sense or Making Cent$?

Recent studies have indicated that during the late 1980s the numbers of persons on waiting lists for organ and tissue transplants continued to increase, while the number of cadaveric donors declined. This has culminated in renewed appeals in several forums for reform of laws and practices regarding organ procurement to accommodate various forms of financial incentives to prospective organ vendors, including tax credits and perhaps a regulated commercial market in tissues and organs. What implications might the stewardship and self-ownership accounts of the property paradigm have for the general goal of increasing the supply of organs and tissues, and for a method of achieving this goal that would rely more explicitly on commercialization of the body? Two contrasting implications present themselves.

A first distinction concerns the extent of discretion allowed moral agents with regard to alienation of organs. The self-ownership principle permits greater discretion, in that the only social obligation one has with regard to what one owns is to refrain from harmful use. Nonuse of one's bodily property does not itself violate the principle. The various rights of property, including management and transmissibility, give a person the liberty to decide whether to alienate organs or not, or permit such decisions to be made by one's successors upon one's death, but they do not suggest any kind of affirmative or positive obligation on the part of the person or the relatives of the deceased. Honore's observation that "a general provision requiring things to be conserved in the public interest ... would perhaps be inconsistent with the liberal idea of ownership"[22] would likewise seem applicable to self-ownership of bodily property. Thus, it is not clear that the self-ownership principle would necessarily have any impact on the problem of organ scarcity, a conclusion that shouldn't be surprising, since the philosophical presupposition of the Uniform Anatomical Gift Act is individual control over anatomical donations.

The stewardship model, by contrast, seems to involve a more demanding standard, especially if the steward takes seriously the positive responsibility to use the property one has been entrusted with for the general benefit of the common good, and the specific purpose of preserving the "life, health, or limb" of others. Such an approach, while not inconsistent with recent statutory reforms such as required request policies, may push even beyond them by making obligatory what has previously been discretionary. A policy of obligatory donation, based on a specific duty of beneficence, has only recently been supported by some writers in biomedical ethics.[23] The stewardship principle could then conceivably have an impact on organ scarcity and supply. However, while obligatory donation may retain the character of a "gift" because the body is ultimately received as a gift, it raises the question whether an affirmative duty to provide transplantable organs and tissues would diminish the sense of altruism and "gift-giving" that traditional practices have sought to foster.

One can reasonably contend that the self-ownership account would likewise diminish the presence of altruism in organ procurement, since application of the principle of alienation in its full sense would require an alternative mode of transfer and acquisition of bodily property, namely, through commercial sales and exchanges. The self-ownership principle would certainly endorse proposals to accommodate financial incentives in organ procurement, though for different reasons from those usually advanced in support of such proposals. The case for tax credits or an organ market is characteristically advanced on the consequentialist grounds that such policies will increase the supply of organs and benefit more people. The self-ownership principle would instead require such policies as consistent with autonomy and the alienability of the body, even if the result of adopting such methods did not produce an overall gain in the supply of organs. Indeed, the current prohibition on a commercial market in organs is, from the perspective of this principle, an instance of unwarranted state paternalism in a private choice. To be sure, on this approach a person would retain the discretion to donate organs, or to donate and refuse financial compensation, or not to donate at all, but the prospect of selling one's organs and tissues would likely be an appealing option for some persons.

Even though the stewardship model would lend strong support to increasing the supply of organs, there may well be a profound moral ambivalence over whether that end would justify the means of commercial trafficking in organs. James F. Childress, for example, has argued that within the stewardship framework of the major western religious traditions, gifts and donations of the body are ethically preferable, but that, under some circumstances, sales and commercial transfers would be ethically acceptable. Moreover, "these traditions do not hold that any mode of transfer/acquistion of human biological materials is intrinsically evil and never justifiable."[24] A similar moral hierarchy of preferability and acceptability is present in the writings of William F. May, although he adds a third tier of normative unacceptability: "Giving and receiving are better than routine taking and getting and certainly to be preferred to buying and selling." More specifically, May is willing to accept a form of barter in organ donations--that of family credits--even though it imperfectly limits the community of moral concern to the family, while associating proposals for the sale of organs with "no religious view but rather with a wholly secularized marketplace that permits one to reduce any and all things to assets for sale."[25] Even this critique, however, is directed more toward the moral deficiencies of the society than toward the deficiences of an individual who decides to sell an organ.

It may be argued that to engage in commerce in bodily organs and tissues, to sell what has been offered and received as a gift, would itself violate and corrupt the moral integrity of the gift. Yet the biblical Parable of the Talents (Matt. 25:14-30), which historically has provided a basic moral orientation to the tradition of stewardship, indicates that persons receive gifts and are entrusted with property by the creator or master, not to hide or preserve the gift but to use it in a responsible manner so that its value is increased. Nonuse of the gift does not seem to be an option on the stewardship account, in contrast to the self-ownership principle, but the criteria for responsible use, I would contend, rely largely on what will best enhance the being and well-being of the moral community.

A commercial market in organs may or may not resolve the problem of organ scarcity, but I am not convinced that we have so exhausted all alternative methods of organ procurement that we must of necessity turn to a market system. In any event, to reduce the question to a conflict between autonomous self-ownership and state paternalism seems to me to court a severe case of moral myopia. Society does have legitimate moral concerns, backed by a sorry historical legacy, about renewed attempts to treat the human body merely as property. Moreover, seeing the body as simply a thing for sale expresses estrangement from our embodied existence. As we continue our attempts to supply organs to these who badly need them, we must be careful not to construct a morality and a public policy that is foreign to who we are and alien to the self we know and experience.

Acknowledgments

Research for this paper was made possible by a grant from the Center for the Humanities, Oregon State University. C. Warren Hovland, Kathleen Moore, Nicholas Yonker, and Peter J. Copek provided instructive criticism of previous versions of this paper.

References

[1.] U.S. Congress, Office of Technology Assessment, New Developments in Biotechnology: Ownership of Human Tissues and Cells, Special Report, OTA-BA-337 (Washington, D.C.: U.S. Government Printing Office, March 1987), p. 70.

[2.] James F. Childress, "Ensuring Care, Respect, and Fairness for the Elderly," Hastings Center Report 14, no. 5 (1984): 27-31.

[3.] Mircea Eliade, The Sacred and the Profane, trans. Willard R. Trask (New York: Harcourt Brace & World, 1959), pp. 11-13, 20-65.

[4.] The Parsi community of India, which stems from Zoroastrianism, as well as some historical Native American traditions, would allow for natural decomposition of the body or consumption by other animals.

[5.] William F. May, "Attitudes toward the NewlyDead," Hastings Center Studies 1, no. 1 (1973): 3-13, at 7.

[6.] A.M. Honore, "Ownership," in Oxford Essays in Jurisprudence, ed. A.G. Guest (London: Oxford University Press, 1961), pp. 118-19.

[7.] The language of "dis-organ-ization" was invoked by John Harris to characterize the retrieval of organs without consent, but I think the term is descriptively meaningful in a general way. See John Harris, "The Survival Lottery," Philosophy 50 (1975): 81-87.

[8.] Russell Scott, The Body as Property (New York: The Viking Press, 1981).

[9.] May, "Attitudes toward the Newly Dead," p. 3.

[10.] Scott, The Body as Property, p. 26.

[11.] Thomas H. Murray, "Who Owns the Body? On the Ethics of Using Human Tissue for Commercial Purposes," IRB: A Review of Human Subjects Research 8, no. 1 (1986): 1-5, at 5.

[12.] Margaret S. Swain and Randy W. Marusky, "An Alternative to Property Rights in Human Tissue," Hastings Center Report 20, no. 5 (1990): 12-15.

[13.] Kenneth R. Minogue, "The Concept of Property and Its Contemporary Significance," in Property, ed. J. Roland Pennock and John W. Chapman (New York: New York University Press, 1980), pp. 3-27.

[14.] Encyclopedia of Philosophy, s.v. "property."

[15.] David Little and Summer B. Twiss, Comparative Religious Ethics (San Francisco: Harper & Row, 1978), pp. 183-88.

[16.] John Locke, The Second Treatise of Government, [Unkeyable] 6.

[17.] Locke, The Second Treatise of Government, [Unkeyable] 27.

[18] Richard J. Anderson, "Lockean Self-Ownership: Towards a Demolition," Political Studies 39 (1991): 36-54, at 40; cf. John Christian, "Self-Ownership, Equality, and the Structure of Property Rights," Political Theory 19, no. 1 (1991): 28-46.

[19.] Lori B. Andrews, "My Body, My Property," Hastings Center Report 16, no. 5 (1986): 28-38, at 33, 36.

[20.] H. Tristram Engelhardt, Jr., The Foundations of Bioethics (New York: Oxford University Press, 1986), p. 129.

[21.] John Stuart Mill, "On Liberty," in The English Philosophers, ed. E.A. Burtt (New York: Random House, 1939), p. 1031.

[22.] Honore, "Ownership," p. 118.

[23.] Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics, 3rd ed. (New York: Oxford University Press, 1989), pp. 200-205.

[24.] James F. Childress, "Attitudes of Major Western Religious Traditions toward Uses of the Human Body and Its Parts," in Justice and the Holy, ed. Douglas A. Knight and Peter J. Paris (Atlanta: Scholars Press, 1989), pp. 230-31, 239.

[25.] William F. May, "Religious Justifications for Donating Body Parts," Hastings Center Report 15, no. 1 (1985): 38-42, at 41.
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Date:Sep 1, 1992
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